MEHMOOD KHAN Versus State

SALAHUDDIN PANHWAR, J.--- Through this Criminal Petition, the petitioners seek leave to appeal against the judgment dated 14.02.2024 passed by the High Court of Sindh, Circuit Court Larkana, whereby Criminal Jail Appeal No.D-22 of 2022 was dismissed and conviction recorded by the learned Additional Sessions Judge-I/Model Criminal Trial Court, Jacobabad vide judgment dated 20.04.2022 in FIR No.04 of 2021 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 at Excise Police Station Jacobabad was maintained.

2.Briefly stated, the prosecution case is that on 23.06.2021 at about 04:00 a.m., the petitioners were intercepted by Excise officials on Shikarpur Road, Jacobabad while travelling in Mazda Truck bearing registration No. NAE-900 (Quetta). Upon search of the vehicle, alleged recovery of 26 kilograms charas concealed in a secret cavity was effected. After usual investigation, challan was submitted and ultimately the petitioners were convicted and sentenced by the learned trial Court, which conviction was subsequently maintained by the High Court.

3.Learned counsel for the petitioners contended that the prosecution has failed to establish safe custody and safe transmission of the alleged narcotics; that despite specific defence plea, neither the Moharrar/Malkhana incharge was produced nor relevant register entries were brought on record in accordance with law; that the alleged narcotics were dispatched to chemical examiner with unexplained delay, thereby rendering the entire chain of custody doubtful; that the alleged owner of the vehicle namely Ghulam Muhammad Pathan was never produced by the prosecution despite the fact that the vehicle admittedly stood registered in his name, which circumstance materially weakens the prosecution case. Reliance was placed upon Ahmed Ali v. The State (2023 SCMR 781) and Zahid Sarfraz Gill v. The State (2024 SCMR 934) . Conversely, learned APG supported the impugned judgment and contended that the prosecution evidence is confidence inspiring and fully corroborated by positive report of chemical examiner.

4.We have heard learned counsel for the parties and have gone through the available record with their able assistance. The pivotal issue in the present case pertains to safe custody and safe transmission of the alleged recovered narcotics. The prosecution, however, failed to produce the Moharrar/Malkhana incharge in whose custody the case property allegedly remained during the intervening period. Likewise, the relevant register entries establishing safe custody of the narcotics were also withheld from the Court. Such omission cannot be brushed aside lightly in narcotics cases where the prosecution is under strict obligation to establish an unbroken chain of custody from recovery till receipt by the chemical examiner.

5.It is also noteworthy that the vehicle from which alleged recovery was effected admittedly stood registered in the name of one Ghulam Muhammad Pathan. Despite availability of such material aspect, the said registered owner was neither associated during investigation nor produced before the trial Court to explain the nature of possession, custody or use of the vehicle by the petitioners at the relevant time. This omission assumes significance particularly when the prosecution case rests entirely upon official witnesses.

6.It is pertinent to note that the entire prosecution case was built upon testimony of official witnesses only. No independent witness from the locality or nearby check-post was associated despite alleged recovery having been effected at a public place. Although non-association of private witness by itself may not always be fatal to the prosecution, yet where material infirmities regarding safe custody and transmission of narcotics exist, such circumstance assumes considerable importance.

7.It is by now a settled principle of law that in narcotics cases, the prosecution is required to affirmatively establish safe custody and safe transmission of the recovered substance and even a single missing link in the chain of custody creates doubt sufficient to entitle the accused to benefit thereof. The prosecution is under legal obligation to prove that from the moment of alleged recovery till receipt by the office of chemical examiner, the case property remained protected from every possibility of tampering or substitution. Failure in this regard strikes at the root of the prosecution case.

8.In the present case, non-production of Moharrar, withholding of relevant malkhana record, unexplained deficiencies regarding safe custody and non-production of registered owner of the vehicle create serious doubt about the veracity of the prosecution case. Needless to mention that even a single circumstance creating reasonable doubt in a prudent mind regarding guilt of accused would be sufficient to extend benefit of doubt, not as a matter of grace but as a matter of right.

9.Additionally, the description of the vehicle in the FIR is stated to be a MAZDA truck bearing registration No. NAE-900, whereas the verification report by Excise and Taxation Officer, states such vehicle to be a ISUZU truck, both being different brands, make it apparent that the prosecution gave contradicting details of the vehicle.

10.Before parting with the matter, this Court is constrained to observe that, in most narcotics prosecutions, the law appears to operate primarily against vulnerable drug peddlers operating at street-level, whereas the principal actors involved in the manufacture, supply, trafficking, and distribution of narcotic substances remain beyond the reach of law enforcement and are seldom brought to justice. It is necessary to record that narcotics law serves an important public purpose. The menace of narcotic substances is destructive of public health, social order and future generations. However, the seriousness of the offence does not dilute the standard of proof. Rather, because the statute provides harsh punishments, Courts must insist upon strict proof of recovery, custody, sampling, transmission and conscious possession. The rigour of narcotics law cannot be permitted to operate at the cost of due process.

11.Additionally, we observe with dismay that recurring deficiencies in narcotics investigations, particularly non-production of Malkhana record, unexplained delay in transmission of samples, non-production of case property and casual destruction proceedings, may create institutional risk of substitution, false implication and misuse of case property. This observation is not a finding of fact against any person beyond the record of the present case, but a systemic concern arising from defects repeatedly noticed in narcotics trials.

12.In the Code of Criminal Procedure, 1898 as well as CNSA, 1997, provisions in this regard exist, which if read together, clarify the issue in hand:

33. Procedure for making confiscation.

Code of Criminal Procedure, 1898

516A. Order for custody and disposal of property pending trial in certain cases.

When any property

[Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf:

517. Order for disposal of property regarding which offence committed.

Section 33(4) of the CNSA, 1997 mandates that the narcotics substance shall be dealt in the manner provided under Section 516-A Cr.P.C, which governs the interim custody and destruction of narcotic substances during the pendency of proceedings and authorizes the court to pass appropriate orders regarding custody, sampling and destruction of narcotic substances under judicial supervision and control, whereas Section 517 Cr.P.C. regulates the final disposal of case property upon conclusion of the inquiry or trial. Consequently, the authority to destroy narcotic substances after the culmination of trial is primarily traceable to Section 33(4) of CNSA, where the expression shall is used for disposal of narcotics substance. Though the expression May is used in 516-A of Cr.P.C, but such dictates the manner of disposal. The shall stated in CNSA being Lex Specialis will prevail over the May in Cr.P.C. In cases, where appeal is preferred, orders be passed subject to the situation, where there is no contention that narcotics material is actually not a narcotics substance, so as to save the possibility of future remand by superior court to determine the actuality of the alleged narcotics substance. In cases where the narcotics sample was retained and not disposed of in accordance with Section 33(4) of CNSA, the court is to use the powers stated in Section 517 of Cr.P.C. upon the conclusion of the trial. The expression may in section 517 Cr.P.C. does not authorise judicial inaction. These powers are judicial in character. They must be exercised through reasoned orders, after preserving representative samples, preparing inventory, ensuring certification, and protecting the rights of the accused and prosecution.

13.Consequently, the following directions are issued:

14.Reverting to the facts of the present case, the prosecution failed to produce the Moharrar/Malkhana Incharge, failed to produce relevant custody record, failed to establish safe transmission, failed to produce the registered owner of the vehicle, failed to produce or satisfactorily account for the vehicle as case property, and failed to explain the contradictory description of the vehicle. These omissions strike at the root of the prosecution case. The petitioners are, therefore, entitled to benefit of doubt.

15.For what has been discussed above, leave is granted. This petition is converted into appeal and allowed. The conviction and sentences awarded to the petitioners are set aside and they are acquitted of the charge. They shall be released forthwith, if not required to be detained in any other case.

JK/M-18/SC Appeal allowed.